Arbitration in Mediation
The concept, principle and act of victim-offender mediation originated in Kitchener, Ontario after two young lads were said to have destroyed private properties after getting drunk and going on a rampage (Johnstone & Van Ness, 2007, p. 212). After being taken to the court, the boys were allowed to go to the homes of their victims, confess their crimes and work out the necessary arrangements to restitute the victim. It is indicated that after three months, the boys had already completed their agreement and had paid/compensate the victims all the losses that they had incurred, thus leading to the creation of the first North American victim offender mediation program (Van Ness & Strong, 2013).
Victim offender mediation or the present form of mediation is different from the traditional view of mediation in the sense that there exists an assumption that one party to the mediation is innocent (commonly being referred as the victim) while the other is guilty (being referred as the offender), having admitted to a crime (the traditional view assumed both parties to have committed a wrong) (Umbreit, 2002). The relation of an offender and a victim put both parties at diverse positions during negotiation. This approach, though aiming for a negotiated settlement relies on the principle of communication, confrontation, as well as accountability, healing and restoration to address grievances between the offender and the victim. Successful operation of the process leads to mutual benefits between the victim, the offender, the community and the criminal justice. Though it must be noted that restorative justice is commonly applicable to a given class of crime, and especially among the young person’s/juveniles, its misuse may lead to increased crime among the people as the offender may only act to please the justice system thereby evading the possibility of retribution. This being the case, the aim of this paper will be to address the effect of mediation /victim offender mediation on the parties involved namely the victim, the offender, the court systems as well as the society, citing merits and demerits on these institutions that entails the purpose of punishment including rehabilitation, incapacitation, deterrence among others. In all these approaches, the state takes the center stage as the offended thereby giving the victim the spectator’s role. Many earlier theorists have played a key role in defining the present criminal justice system. Understanding mediation would therefore help the whole system in a holistic way as all parties would be involved for a common gain. It would be prudent therefore to understand and illustrate the effect mediation/victim offender mediation on various stakeholders in the criminal justice system.
For mediation to occur, activists as well as scholar must be able to go beyond the oppositional retributive avenues of justice, be able to address the relationship that exists between retribution and consequentialism, and be able to address the issue from all angles, especially by comparing it with other justice approaches (Gavrielides, 2007). Various principles and practices have to be put assumed so that conflict may be addressed that emanates from the role assigned to the criminal justice, in particular retributive and deterrence role of the system. One of the assumptions to be made includes the fact that a given crime should be taken as a conflict between two parties/individuals and not an aggression/conflict between the offender and the state. The law has stipulated consequences in relation to any crime, may it be against the state or another person. Without taking this consideration, the state would always act as an arbiter awarding damages/retribution to the wrong parties. At the same time, another principle of restorative justice entails the assumption that the responsibility for the governance and maintenance of security, crime as well as disorders should be a community sharing thing thereby giving the society the right to address matter regarding security, crime among themselves by providing mechanisms to sole disorders within the community. This being the case, mediation is viewed as a humanitarian approach aimed at bring forth the concept of forgiveness, healing, reintegration and reparation between the members of the society. Mediation has the capability of bringing together the affected and involved parties namely the offender, the victim, family members and the community in an attempt to engage in reconciliation and reparation. This helps the offender and the victim to meet in a face to face manner, though in particular cases indirect contact is employed, to air their thoughts in order to reach an agreeable solution. This may take various forms including the aspect of victim offender reconciliation, the family group conferencing as well as the sentencing circles.
Effects of mediation on the victim
Mediation as indicated is a form of restorative justice that aims at addressing the conflict between two parties where one is innocent outside the corridors of justice. It has advantages to the victim in that upon its successful conclusion, it leads to the closure of the case/conflict thereby bringing in some peace of mind to the victim. This is so because, being part of the process, the victim is able to understand the ongoing thereby having a heart to forgive or conclude such matters better and fast as compared to the judicial processes (Bradshaw, Roseborough & Umbreit, 2006). At the same time, mediation gives the victim the opportunity to confront the offender with the magnitude that the offense demands in a human approach. This gives the victim an opportunity to express thoughts, discomforts, and feelings directly to the offender without waiting for the conclusion of the matter to be made by the courts. The approach induces direct answers to questions to the offender, thereby enabling the affected to know why the offender did what they did and whether their action was as a result of the victims actions and if the victim could do something to prevent such occurrences in the future.
Through mediation, the victim is able to allay fears about the offender. The encounter would help in determining whether the victim is in danger based on the proceedings. Because mediation is about conflict resolution, the victim is likely to receive or ask for an apology from the offender. Unlike in the judicial processes where the center stage is accorded to the prosecutors, the lawyers and the judge, the victim in mediation process is empowered and becomes a primary participant in the case unlike in the criminal justice process. At the same time, the offender is held personally liable for the cause and therefore, mediation helps in determining the type and amount of restitution and other restoration approaches in a form that is more personal and effective. Unlike court cases that takes longer period top determine, the mediation process may start immediately and the chances of restitution occurring are much greater as compared to the court proceedings. The personal contact between the offender and the victim is also likely to impact the chances of offender re-offending because of the direct relationship of the parties involved in the process. The direct involvement and the shorter mediation process as compare to the courts helps the victims to have a sense of performance (a feeling that justice has been performed in the process)
Effects of mediation to the offenders
Mediation being a court oriented process and an out of court proceeding may have more positive rehabilitative measures to the offenders than the court oriented judicial process. The court system in most cases consist of a punitive approach that aims at retribution the offender. Mediation offers an opportunity of the parties the mediation process to make amends thereby enabling the offender to identify his/her wrong performances instead of the punitive court proceedings. At the same time, the offender may be willing to offer an apology to the victim which may not possibly happen through the court systems as they function under set statutes. The mediation process therefore gives the offender an opportunity to express themselves as to why they did the crime, the conditions that led to as well as the apology intent of the offender not to reoffend again against the victim. Under this method, having the affected parties dialogue without coercion, helps the parties to truly understand the real consequences of the offenses in a humane manner (Shapland, et al., 2007). The offenders may also be able to reclaim themselves before the victim by enabling the process portray the offender as a person and not a criminal or a monster for that matter in relation to the offense committed. Of importance to note is the fact that the court process does not allow the victim to negotiate the restitute measures to be taken against them, but the mediation process enables the offender to fully participate in the restoration process. For criminals who are not dangerous to the community and especially the first offenders and offenders of minor offenses, mediation helps them avoid the court processes that would lead to prosecution, incarceration and having a criminal record through compensating the victim. The process also gives the offender an opportunity to restore one’s self image as that of a good person who is competent.
Benefits to the community
Mediation may have positive impact to the offender and the victim but the community may shy off from allowing the process to take place owing to the social constructiveness of the setting. Many people believes that the court process is better off than the mediation process since the court awards punitive and retributive damaged to the party. This being the case, the community in many instance would not favor the mediation process for criminals or juvenile offenders as they would fear the chances of reoffending among the offenders. Despite this, it is assumed that if embraced by the community, mediation would lead to various positive outcomes that include the reduction of repeat crimes by making the offenders realize how they hurt the victims. The community may also benefit from the process since the impact of crime in the community would be lessened due to increased restoration of loses. It may also reduce the impacts associated with incarceration in the society by enabling the community embrace the offender and help in rehabilitation. In situations where the offender is likely to encounter the victim in the future, and the offense occurred as a result of an ongoing interpersonal conflict, mediation would go a long way into ensuring that there is peace in the community, and that the offender as well as the victim have no grudge against each other. Since mediation entails having third parties in solving conflict between parties, mediation empowers the community to actively address the crime problem instead of over relying on the government oriented court processes to solve community problems.
Mediation and the justice system
Where there is successful mediation process, the entire social system benefits greatly since effectiveness can easily be achieved. To the judicial system, mediation may go a long way in addressing and fulfilling the needs of the crime victims thereby increasing their trust and believe on the justice system. The procedure also encourages and exposes the judicial process thereby increasing the public experience of the system. This in actual sense decreases the court processes of processing offenses and gives the court an opportunity to look into other matters that may not be addressed through mediation (Law Reform Commission, 2010). A lot of finances is allocated to the courts for the purposes of carrying out its mandate. If mediation which is an out of court proceeding takes effect, the expenses associated with the transaction and processing of such cases is greatly reduced since trained volunteers engage in mediation processes. The costs associated with incarceration are also greatly reduced and the offender can therefore usefully contribute to the society. Through mediation, the community is able to understand and own the criminal justice process thereby leading to the reduction of the court dockets, reduction of caseloads in the juvenile courts, as well as other personnel’s involved in the process including correctional persons, the police department among others.
Mediation as one way of restorative justice has effects on entirely the whole of the justice system that includes the community, the offender, the victim and the family members. Supporters and opponents of mediation cite various standpoints in regard to the issues. All in all, the direct involvement of the offender and the victim help in a big way in addressing social ills that could affect the community in future as a result of held grudges between community members. The involvement when successfully executed lead to high satisfaction level on the victim’s side through communication, information and compensation. The offenders on the other hand have a central role in the proceedings and in most cases are ready to comply with the outcomes. Though the support for mediation is increasingly gaining important, it is not likely that it will totally replace the current criminal justice system as some crimes cannot be addressed by mere mediation. Mediation saves time and is aimed at creating a win-win situation. Judicial resources including time, money, can be greatly saved by the process. Cases that the court might otherwise render mistrial due to insufficient evidence, lack of evidence and other factors that may render the case difficult to determine may be solved through the mediation process. All in all, the mediation process in the judicial process is an all win situation whereby the healing process is encouraged through the controlled setting for the offender and the victim to meet on a voluntary basis. It also allows the offender to learn of their crime and take responsibility of the same thereby creating a room where mutually acceptable approach that addresses the harm is initiated.
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Gavrielides, T. (2007). Restorative justice theory and practice: addressing the discrepancy. European Institute for Crime Prevention and Control, affiliated with the United Nations (HEUNI).
Johnstone, G., & Van Ness, D. W. (2007). Handbook of restorative justice. Taylor & Francis.
Law Reform Commission. (2010). Alternative Dispute Resolution: Mediation and Conciliation. Law Reform Commission, Dublin.
Shapland, J., Atkinson, A., Atkinson, H., Chapman, B., Dignan, J., Howes, M., … & Sorsby, A. (2007). Restorative justice: the views of victims and offenders. Ministry of Justice Research Series, 3(07).
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Van Ness, D. W., & Strong, K. H. (2013). Restoring justice: An introduction to restorative justice. Routledge.